Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1

1 Tuesday, 19 February 2002

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.45 p.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: Good afternoon, Your Honour. Case number

8 IT-96-21-A bis, the Prosecutor versus Zdravko Mucic, Hazim Delic, and Esad

9 Landzo.

10 JUDGE HUNT: Appearances for the Prosecution, please.

11 MR. CARMONA: Your Honour, may it please you, I appear on behalf

12 of the Prosecution. My name is Anthony Carmona. Ms. Helen Brady appears

13 with me, and Mr. Wolfgang Zakalic is our case manager.

14 JUDGE HUNT: For Mr. Mucic.

15 MR. KUZMANOVIC: Good afternoon, Your Honour. Tomislav Kuzmanovic

16 on behalf of Mr. Mucic. Mr. Morrison has other professional commitments

17 in England.

18 JUDGE HUNT: For Mr. Delic.

19 MR. KARABDIC: [Interpretation] My name is Salih Karabdic, an

20 attorney from Sarajevo, and I'm here with my co-counsel, Mr. Thomas Moran,

21 on behalf of Hazim Delic.

22 JUDGE HUNT: Thank you. And for Mr. Landzo.

23 MS. SINATRA: Yes, Your Honour. Good afternoon. I am Cynthia

24 Sinatra for Mr. Landzo, along with associate counsel, Mr. Peter Murphy.

25 JUDGE HUNT: Thank you. This is a Status Conference which has

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1 been called in accordance with the Rules. We're not at any stage of the

2 proceedings that we can deal with the issues arising out of those. Well,

3 not many of them anyway.

4 Is there anything that any counsel wishes to raise on behalf of

5 their client, the other matters to which the Status Conference Rule

6 refers?

7 MR. KUZMANOVIC: Your Honour.

8 JUDGE HUNT: Yes, Mr. Kuzmanovic.

9 MR. KUZMANOVIC: Thank you. We have just a question regarding the

10 briefing. The Scheduling Order required that the OTP file a brief by 14

11 February 2002, and as of today none of the Defence lawyers have received a

12 copy. I understand there's been an amendment to the Rules dealing with

13 the timing of filing of briefs, and we had a discussion amongst ourselves

14 and amongst the OTP, and we'd like to come to some resolution on when we

15 are going to be expecting a response brief, because the 24 December 2001

16 Scheduling Order says the consolidated respondent's brief shall be filed

17 no later than 14 February 2002.

18 JUDGE HUNT: I probably signed it, but I have absolutely no

19 recollection of it, Mr. Kuzmanovic. But according to the legal officer's

20 computations, the respondent has 40 days to respond and that is until the

21 24th of February, which is a Sunday, so that we would expect their

22 response by next Monday. But anyway, what is the situation?

23 MR. CARMONA: Yes, Your Honour. I can give the assurance that we

24 in fact would file by Monday.

25 JUDGE HUNT: Yes. And then the reply would follow in accordance

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1 with the new Rules.

2 There seems to be an epidemic of instances over the last few

3 months where the counsel have somewhat disregarded their obligations in a

4 reply, and they seek to go off onto new paths, raise new grounds of

5 appeal, and all sorts of things. Those attempts are not being treated

6 with very much sympathy. If you want to raise something new, then it must

7 be raised in your appellant's brief and by leave, and if there are matters

8 which are inserted in a reply which are not a reply to the response, you

9 may find there will be an order striking them out.

10 Now, the one issue -- I'm sorry. That's for Mr. Kuzmanovic.

11 Anything from you, Mr. Karabdic, that you want to raise?

12 MR. MORAN: Your Honour, I don't think we have anything to raise,

13 except that there's a possibility --

14 THE INTERPRETER: Microphone, please.

15 MR. MORAN: Your Honour, I don't think we have anything to raise,

16 except there's a possibility for oral argument, that I may have a very

17 important personal commitment in the middle of May, and if you want me to

18 bring that forward --

19 JUDGE HUNT: I hope that we'll be hearing this before May, but

20 then one never knows. But whilst you're on your feet, Mr. Moran, the

21 application which you have filed on behalf of your client for a review

22 should have never been filed in this reply. It's a completely separate

23 proceeding and has been recently given a new number by the Registry, so

24 that it has been hived off, as it were, from the appeal. Obviously it

25 will have to be heard or disposed of before the sentence appeal is dealt

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1 with. I understand that the President is today assigning Judges to hear

2 the review. But having read the papers, assuming that I have got

3 something to do with it, you might like to tell me what your attitude is

4 towards this document which the whole of your review depends upon and

5 which the Prosecution has sought to establish was in your client's

6 possession during the course of the trial.

7 MR. MORAN: Your Honour, I think Mr. Karabdic would be the

8 appropriate person to speak to that.

9 JUDGE HUNT: Yes. Well, Mr. Karabdic, the reply which you have

10 filed does not in any way seek to deny what is said by the Prosecution,

11 although there's a somewhat strange statement on an unnumbered page, which

12 was page 5 of the fax:

13 "That does not mean that Delic admits the new fact was available

14 before and be discoverable through the exercise of due diligence. Let the

15 Prosecutor prove that if she wish, but that will be unuseful spending of

16 time, Delic thinks."

17 Now, we've got material before us which has your signature on it

18 which demonstrates that you had this statement during the course of the

19 trial. How can this review proceed?

20 MR. KARABDIC: [Interpretation] There are signatures showing that I

21 received some witness statements; however, it cannot be concluded from

22 them that I received both statements. That's one thing. Another is that

23 I based my application for a review on the fact that there is an issue

24 that significantly affects the decision and indicates that a miscarriage

25 of justice must be avoided. In the interests of justice, the application

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1 should be granted, because if this is accepted, it will lead to a

2 completely different judgement than the previous one. I believe that the

3 Defence has the right to rely on this, just as the Prosecutor relied on

4 this before the Rwanda Tribunal, and I think that the right to apply for a

5 review belongs also to the Defence.

6 JUDGE HUNT: Well, the right to a review is provided for by

7 Statute and it does require you to produce a fact which was not known to

8 you and which was not discoverable by due diligence. Now, I do not

9 understand how we have jurisdiction to hear a review if you cannot

10 establish that fact. But if you are relying upon something else, no doubt

11 you will produce some authorities in support of your proposition. I'm not

12 sure where you'll get them from. You realise, don't you, that there has

13 been a request from the Appeals Chamber to the Prosecution to elaborate

14 that response about the two documents, and on the 8th of February there

15 was a Prosecution's response to that request for further information

16 which, on the face of it, seems to deal, very elaborately and very

17 definitively, with any argument that you did not receive the particular

18 statement upon which you rely. Now, if you want to rely to that, you

19 can. I suggest that if you can, you should. Do you wish to file a reply

20 to it?

21 MR. KARABDIC: [Interpretation] Certainly. Certainly, I do. I can

22 say now that in my view, the response of the Prosecution is not truly a

23 response to the request made of the Appeals Chamber. The Prosecution has

24 not given a proper response, and I will elaborate on this.

25 JUDGE HUNT: Well, I can't make an order at this moment, because I

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1 have not formally been assigned to the review. But assuming that that is

2 signed today, I will make an order within the next couple of days. How

3 long do you need in which to respond to it?

4 MR. KARABDIC: [Interpretation] Ten days.

5 JUDGE HUNT: I will make a note on that. And if I am not on the

6 review, I will speak to the Judge who will be the pre-hearing Judge for

7 that and you will have that leave.

8 Right. Now, is there anything else that anybody wants to raise in

9 accordance with the Rule relating to Status Conferences?

10 Ms. Sinatra, do you wish to raise anything?

11 MS. SINATRA: No, Your Honour. We were just curious about the

12 status of the Prosecution's reply brief, and I thought it might be useful

13 to use this time to issue -- to talk to the Court about a new Scheduling

14 Order, if that were possible, based upon the new amended Rules and maybe

15 so that we could all anticipate a time for oral argument in the future.

16 JUDGE HUNT: Well, at the moment that you've finished your

17 filings, we'll consult you in relation to an appropriate date, and we will

18 take into account Mr. Moran's problems.

19 Just a moment. I'll check what the new Rules say. I'm never

20 quite sure that I've got the right copy here.

21 MS. SINATRA: I think we have 15 days to file a response to the

22 Prosecution's response.

23 JUDGE HUNT: The 15-day period is still there for the reply. So

24 that will be -- take you through until -- through to about the 11th or the

25 12th of March. Mid-March, in other words. At the moment, we see the

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1 replies and then we have to dispose of the review that Mr. Delic has

2 raised. So you'll be consulted at that stage when we dispose of that and

3 we know precisely what is happening and how long it is likely to take for

4 the hearing.

5 But I should make it clear that as far as I can see, there is no

6 right of any of the parties to try and relitigate matters which were

7 litigated in the conviction appeal, and yet each of you appear to have

8 attempted to do so. That is disposed of. We are hearing a sentence

9 appeal, and it is not any part of our remit to hear matters which go to

10 conviction. So if I were you, I would not spend too much time trying to

11 argue matters which go to conviction.

12 As to the jurisdiction to have this matter determined by a fresh

13 Trial Chamber, I suggest to you that is a matter that was dealt with in

14 the conviction appeal, and having been dealt with, it's not open to be

15 re-argued. That may be subject to anything which my colleagues will say,

16 but that's my view of it. We are here to hear a sentence appeal from a

17 very limited re-sentencing, a re-sentencing which was directed to deal

18 with the fact that there were less convictions and some other very limited

19 matters particularly relating to Mr. Delic and the fact that one of his

20 other convictions was removed as well. So as a hearing, it should not

21 take very long.

22 Right. Now, anything the Prosecution wants to raise?

23 MR. CARMONA: Indeed, Your Honours.

24 JUDGE HUNT: Yes, Mr. Carmona.

25 MR. CARMONA: Yes. I just wish to bring to the attention the fact

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1 that we had made a request for the book of authorities from Mr.

2 Kuzmanovic. In fact, we had relayed our concern that the book of

3 authorities was not filed. And in the context of the pending appeal, as

4 much as, in fact, the utility of his proffering those book of authorities

5 now may be lost, certainly in the context of the appeal, we certainly

6 would prefer if, in fact, such book of authorities can, in fact, be sent

7 to us or can be filed.

8 In any event, as much as, in fact, we have had to look at his

9 authorities, we do have most of it. And I can assure you, Your Honour,

10 that it is our intention to liaise possibly with Mr. Kuzmanovic to

11 determine exactly what we are missing, although it would certainly help

12 us, it will help the Court, if an entire book of authorities probably is

13 filed.

14 JUDGE HUNT: I haven't had the opportunity of reading the appeal.

15 Are there a lot of authorities which are not familiar to us?

16 MR. CARMONA: They are from the American jurisdiction.

17 JUDGE HUNT: Oh. We're familiar with a few of those. Anyway, I

18 see the problem, because we certainly don't have access to the American

19 authorities.

20 What about it, Mr. Kuzmanovic?

21 MR. KUZMANOVIC: Your Honour, it's not a problem. I have replied

22 to an e-mail notifying that if the cases that I've cited need to be filed

23 and served, I will certainly do so. All of them are available on the

24 Internet at no cost, but I will surely provide opposing counsel and the

25 Court, if the Court so desires, with a copy of all the cases that I've

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1 cited in our brief.

2 JUDGE HUNT: Are the Internet versions paginated the same as the

3 printed versions of the reports?

4 MR. KUZMANOVIC: Probably. Some of them are. Some of they

5 aren't, Your Honour. I think if you're on something like Westlaw or Lexis

6 they are. If you're on --

7 JUDGE HUNT: Lexis is very good usually because they give you, in

8 square brackets, the page of the actual report.

9 MR. KUZMANOVIC: Yes. I will -- I will file them nonetheless,

10 Your Honour.

11 JUDGE HUNT: It might be advisable. It would be very helpful.

12 Anyway.

13 MR. KUZMANOVIC: Certainly.

14 JUDGE HUNT: Anything else?

15 MR. CARMONA: Nothing, Your Honour.

16 JUDGE HUNT: Very well, then. Well, we'll adjourn the Status

17 Conference, and we'll let you know what date the hearing of the appeal

18 will be.

19 --- Whereupon the Status Conference adjourned

20 at 3.05 p.m.